The Defense Is the Enemy

Remember, the law treats prosecutors and defense counsel differently. Criminal defense attorneys are paid to advocate the innocence of those they know to be guilty. In contrast, it is unethical, if not illegal, for prosecutors to advocate the guilt of those they know to be innocent.

Don’t talk to defense counsel informally. Defense counsel is trying to screw you to the wall. If defense counsel intends to call you as a defense witness, ask what questions counsel will be asking you so that you can prepare. The law does not require the defense counsel to tell you the questions in advance, but if counsel does not tell you, mentioning that in court will explain to the jury why you need to keep referring to your report to refresh your recollection.

If defense counsel asks to speak with you informally, before putting you on the stand, just tell counsel, “I will talk to you if the prosecutor is present while we talk.”

Don’t begin answers with the words “I think” or “I believe.” If you are not sure, ask for time to look at your report. If you still are not sure, don’t guess. Say, “I don’t know” or “I don’t remember.” The few subjects that often require estimates, as opposed to exact answers, are time, distance, and dates. If you are not comfortable giving an exact answer, testify to the best estimate you can give, after determining that your written report does not have the exact answer.

You can control the pace of the questions by controlling the pace of your answers. That does not mean you should speak slowly. It means you should pause after defense counsel’s question before you begin your answer.

Defense counsel may ask you to state the name of your informant while you are on the stand. Your response is, “I will have to talk to the prosecutor.” If the defense attorney asks you why you need to talk to the prosecutor, just say, “Because revealing the informant’s ID might get the informant killed” or “revealing that informant’s ID might jeopardize other, ongoing investigations.”

If defense counsel tells you to answer the question “yes” or “no,” you don’t have to do that. You do not have to answer yes or no if the answer is or would be misleading. And that is what you should say.

Sometimes defense counsel will ask the same question several times maybe even using the same words or using slightly different words. Is defense counsel implying that your answer is not understandable? Does the defense believe you did not understand the question? Does the defense expect a different answer? It doesn’t matter because you could not care less. Defense counsel is trying to confuse you and trying to get you to change your answer. When defense counsel asks you the same or a similar question, give the same answer. Use the same words in your answer. Do not think you have to change your answer.

Don’t Screw Us Up

Sometimes officers save themselves embarrassment at the cost of our cases. That’s disastrous for the good guys.

In one case, two college kids drove into Los Angeles to watch a volleyball game at a rec center. Neither was a gang member, but each was wearing blue. The rec center, unknown to the college kids, was in the middle of Black P-Stone Blood territory. Two Black P-Stone Bloods wearing red came into the gym, one armed with a handgun, the other unarmed. The unarmed gangster started a fight with the two college kids. The armed gangster shot both college kids, wounding one and killing the other.

A homicide detective, who lived near the college kids, took the original six-pack photo lineup out to the surviving witness on his way home. But the detective failed to follow standard procedure and did not make a copy of the original six-pack photo lineup for the witness to mark. The witness made an identification of both the “shooter” and the “puncher,” but the detective failed to make a written note of those identifications.

In a later, sworn affidavit, the detective mixed up the identifications. My partner and I had split the “shooter” and the “puncher” for trial. First, we tried the person we thought was the “shooter” because of what we were told by the detective. However, the surviving witness testified that the defendant was the “puncher” and not the “shooter.”

My partner and I retooled in the middle of trial and, thankfully, got a conviction of second-degree murder on the “puncher” as an aider and abettor.

Then we went to trial on the actual shooter. After the surviving witness identified the defendant as the actual shooter, the defense counsel called the detective to impeach our surviving witness with the detective’s testimony that our witness identified the shooter as the puncher. The trial judge refused to allow murder charges to go to the jury and we wound up with a conviction of manslaughter on the actual shooter.

In another case an experienced homicide detective never showed the eyewitness a six-photo-pack. Defense counsel asked the detective, on cross-examination, “Why didn’t you show the witness the six-pack you had prepared?”

The experienced homicide detective admitted he never showed the witness a six-photo-pack. Why? The detective testified, “I did not think the witness could make an identification.” My partner and I looked at each other and whispered, “incredible.”

We got the conviction and a death verdict anyway. But, the detective should have said, “I made a mistake. I forgot to show the witness the photo-six-pack.”

The moral to both of these stories is that it’s better to do things right than to be embarrassed, but it is better to be embarrassed than to harm the prosecution. When you violate your own policy, just admit you made the mistake.

Prosecutor Shopping

There are times when detectives should not take “no” for an answer.

My partner and I were sitting in our office in the Major Crimes Division when two homicide detectives walked in, neither of whom we had worked with before, but one of whom we knew and respected.

The detectives told us that they had in custody a 19-year-old gangster who, they believed, committed three separate murders when he was just 15 years old. The detectives told us they had presented the three murders to a colleague of o
urs in the Major Crimes Division, and he had rejected outright two of the murders and had filed only one.

And in one murder, our colleague had allowed the gangster to plead down to a manslaughter with a promise of no more than six years in state prison. The detectives told us they were coming to my partner and me because they had heard we had experience prosecuting Mexican Mafia murders, and they believed the three murders were Mafia connected. They asked if we would review the three murder books and let them know what we thought.

My partner and I read the three murder books and spoke to our street gang experts and our Mafia experts. We wound up filing all three murders against the 19-year-old gangster, getting the manslaughter plea set aside, and convicting him on all three murders. Instead of the six years in state prison, he is doing 79 years to life.

I can’t tell you how or when to seek the opinion of another prosecutor. My guess is it has to do with your reputation. Maybe it has to do with your reputation for skill, hard work, respect, and trust. It takes a while to build such a reputation and, once built, it must be protected.

Related Articles:

• How to Master Law Enforcement Report Writing
• Your Rights Under FERPA
• U.S. Dept. of Ed Releases New FERPA, HEA Emergency Guidance

Ruth A. Curry, my partner and a paralegal in the Los Angeles County District Attorney’s Office, helped write this article.

Anthony Manzella retired after 25 years of service with the Los Angeles County District Attorney’s Office. Before becoming a DA, he spent 13 years teaching trial advocacy at the Loyola (Los Angeles) Law Center.

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